H-IB VISA: FOREIGN PROFESSIONALS CAN WORK IN THE UNITED STATES

Foreign professionals and workers with a bachelors degree or its equivalent, or higher, may be eligible to work in the United States as an H-1B nonimmigrant. The H-1B nonimmigrant visa may be used to bring a worker temporarily to the United States if the employee will work in a "specialty occupation" or a professional position.

1. Qualifications

The employer must have a U.S. taxpayer identification number. Foreign businesses not established in the U.S. cannot use the H-1B to bring employees to the United States. (However, foreign businesses may be able to use the E visa, or another visa, to bring an employee to the United States to work.)

2. Labor Condition Attestation

The employer must prepare and file a Labor Condition Attestation (LCA) with the Department of Labor (DOL). The LCA is a form must be posted in two conspicuous places at the work site and describe the position, salary, working conditions, labor conditions, etc.

Once the LCA is approved, the employer files a petition with the Immigration and Naturalization Service (INS). The employer must doucment that the position requires the services of a person in a "specialty occupaton". This means a person who is working in a professional position and who has a minimum of bachelor's degree or its equivalent.

3. Other Employer Obligations

The employer must maintain wage and hour records, as well as information concerning working conditions for all similarly situated employees. Upon request, these records must be provided to DOL's Wage and Hour Division.

If an employer does not document the wage, pay the required wage or maintian the required records, the employer could be liable for substantial penalties including back pay and fines of up to $1,000. The employer could even lose the right to apply for H1-B visas as well as all other immigrant and nonimmigrant visas for up to one year.

If the employer terminates the services of the employee prior to the expiration of the H1-B visa, the employer is responsible for paying the employee's return transportation to his or her last foreign residence.

THE EMPLOYEE MUST BE QUALIFIED:

The employee must prove that he or she is qualified for the specialty occupation and the specific job offered by the employer. The employee must be able to show that his or her foreign university degree is the equivalent to a U.S. degree by obtaining a credentials evaluation of his or her education.

If the worker is in the U.S. and currently holds a valid nonimmigrant visa status, he or she may apply in the U.S. for the H1-B visa. For example, if he or she is in lawful student status (F-1) the worker may seek a change from F-1 to H-1B. This change only gives the person the ability to work in the U.S. for the sponsoring employer. If the worker needs to travel abroad, he or she will need to apply for an H1-B visa at a U.S. Consulate. Workers not in lawful status in the U.S. or those residing abroad, apply for an H1-B visa at a U.S. Consulate.

LENGTH OF EMPLOYMENT:

The H-1B is a temporary visa with specific limitations on periods of stay in the United States. The initial petition may be approved for up to three years. After the initial period, three or more years are available.

The employer must update or refile the LCA and must file H1-B petition extensions. After six years, the worker must spend one year outside the United States before he or she is entitled to have another H1-B visa.

ACCOMPANYING FAMILY MEMBERS:

The H1-B employee's spouse and unmarried children under 21 years old may be granted an H-4 visa. An H-4 visa holder is not permitted to work in the United States. They may, however, attend school.

PERMANENT RESIDENCY:

Many workers on H1-B visas obtain permanent resident visas (the "green card") during their initial stays in the U.S.

CONCLUSION:

This information has been provided as a broad overview of the H-1B visa category. Immigration laws are complex and do change. Therefore, to discuss whether you are eligible to apply for an H-1B Visa or another visa category under the United States immigration laws, contact the LAW OFFICES OF JAMES J. REGAN.

Thank you.